19 Ind. App. 173 | Ind. Ct. App. | 1898
— Appellee sued appellant upon an insurance policy to recover for loss sustained by fire. The complaint avers that on October 31, 1894, appellee was the owner of a certain frame dwelling house in Hancock county, Indiana, and on November 5, 1894, appellant issued to him its policy of insurance thereon, insuring him against loss by fire from October 31, 1894, noon, to October 31, 1897, noon, in the sum of $1,000.00; that the premium thereon was $10.00, which was paid; that on December 1, 1894, said house was totally destroyed by fire, without fault or negligence of appellee, and that he continued as the owner of said property from said 31st day of October, 1894, up to and including the date of said fire.
The complaint avers that said building was situated in the city of Greenfield, in said county, and that one Elmer E. Stoner was and still is the general agent and adjuster of appellant, and that immediately after said fire, said Stoner had full knowledge of the destruction of said building by fire and of said loss, and that within five days of said fire, said Stoner, acting f.or appellant, notified appellee that appellant would not pay said loss, on the sole ground that said house was not occupied at the time it was so destroyed, and
Appellant demurred to the complaint, which was overruled, and it excepted. Thereupon it answered in five paragraphs. (1) General denial; (2) that at the time of the fire the house was vacant; (3) that at the time of the fire the house was unoccupied; (4) that at the time the house was uninhabited; (5) that when appellee applied for said insurance, he represented in his application that he held title to said property by warranty deed, when in fact his only title was by sheriff’s deed, and that by the terms of said policy and application, said representations became warranties, binding plaintiff upon said contract, upon which representations appellant had a right to and did rely,- and upon which it issued said policy.
To the second, third, fourth, and fifth paragraphs of answer appellee demurred, which demurrer was overruled as to the second, third, and fourth, and sustained as to the fifth paragraph, to which latter ruling appellant excepted. Appellant replied to the second, third, and fourth paragraphs of answer by general denial, trial by jury, special verdict and judgment in favor of appellee for $1,000.00. Appellant’s motions for a venire de novo, judgment in its favor on the special verdict, and for a new trial, were each unavailing, and to the. adverse rulings thereon, appellant reserved exceptions.
There are seven specifications in appellant’s assignment of errors as follows: (1) That the complaint does not state facts sufficient to constitute a cause
In Germania Fire Ins. Co. v. Deckard, 3 Ind. App. 361, it is held that the averment that appellee performed all the conditions in the policy, on his part, was intended to apply to and qualify the conduct of the insured to the time of the'action and must be so construed. In Phenix Ins. Co. v. Pickel, 119 Ind. 156, the court said: “Where a policy of insurance contains conditions and warranties like those contained in this policy, it is sufficient for the plaintiff to show fulfillment of the conditions of recovery which are made such by the contract itself. The burden is then upon the defendant to set forth and prove the untruthfulness of the representations, if there are any such, upon which he relies. The plaintiff need not aver the truth of statements contained in the application, nor the performance or non-performance of conditions subsequent, nor negative prohibited acts.” See May Insurance, sections 183 and 590. Northwestern, etc., Life Ins. Co. v. Hazelett, 105 Ind. 212, 56 Am. Rep. 192.
In the case from which we have just quoted it was contended that as the policy provided against the property becoming vacant, etc., that to make the complaint good it was necessary to allege that it was not
In the case of Phenix Ins. Co. v. Golden, 121 Ind. 524, the policy sued upon was conditioned that if the property insured should become vacant or unoccupied without written consent indorsed on the policy, it should become null and void. The complaint did not aver that the property insured was occupied at the time of its destruction but did aver that the insured, had upon his part performed each and every act which by the terms of the policy he was required to do. The court said: “It is contended by counsel for appellant that the complaint is defective, for the reason that it does not specifically aver that the property was not allowed to become vacant, and that it was occupied at the time it was burned. If this is a condition precedent, which it was necessary for the plaintiff to aver the performance of to entitle him to a recovery, the general averment in the complaint is sufficient. Section 370 R. S. 1881. But it may well be questioned whether or not, in the absence of a general averment, this is not a matter of defense, which must be pleaded by the defendant if a vacancy occurred, which would defeat a recovery.” The complaint was held good. See also American Ins. Co. v. Leonard, 80 Ind. 272; Indiana Ins. Co. v. Capehart, 108 Ind. 270; Commercial Union Assurance Co. v. State, ex rel., 113 Ind. 331.
These cases seem to settle the question under discussion in favor of appellee. If the condition of the policy providing against vacancy is a condition precedent, which we are of the opinion it is not, appellant’s contention is answered by section 370, Horner’s R. S.
It is next contended by appellant that the complaint is defective, in regard to the averments as to waiver of proof of loss. The policy provided that in case of loss appellee was to give appellant notice, in fifteen days at its western office in Chicago, and within sixty days, to render to said office under oath a particular and detailed statement and proofs of loss, etc., and that an appraisement thereof should be made. The complaint avers that one Elmer E. Stoner was the general agent of appellant, residing in Greenfield where said property was situated, and that immediately after said fire, he had actual knowledge of the destruction of said building, and that within five days thereafter, said Stoner acting for said company notified appellee that appellant would not pay the said loss, on the sole ground that.the said house was not occupied at the time it was burned, and thereby waived notice of said loss and proof thereof as required by the policy. The facts here pleaded, are sufficient to show a waiver of notice and proof of loss. There are many cases so holding, the most recent one being the Western Assurance Co. v. McCarty, 18 Ind. App. 449.
In that case Comstock, J., collected many authorities, and we content ourselves by citing it as controlling here. See, also, Phoenix Ins. Co. v. Searles (Ga.), 27 S. E. 779. In a recent case in Illinois, it was held that notice and proof of loss were waived, where the
In the case before us, as averred in the complaint, appellant refused to pay the loss, on the ground that the property was vacant or unoccupied, when it. burned, and so notified appellee by its agent.
The law does not impose unnecessary or useless burdens on any one, and when this information came to appellee, the law imposed no further duty upon him in the way of giving’notice and making proof of loss. He was then at liberty to bring his action and' recover for his loss, if the law and facts would entitle-him to relief. The complaint stated a good cause of'" action, and there was no error in overruling the demurrer to it.
The controlling question, it seems to us, is raised by the sixth specification in the assignment of errors, viz:;" that the court erred in overruling appellant’s motion for judgment on the special verdict. The rule is so-well established in this State, that it is almost axiomatic, that to entitle a party having the burden of proof to a judgment in his favor on a special verdict,, such verdict must find and state every essential fact necessary to a recovery.
It is well settled, that insurance companies may-contract against increased risks, in the way of insured property becoming vacant, change of business, etc. Appellee accepted the policy in suit, with the condition in it, exempting appellant from liability, in case the property insured should become “vacant, unoccupied or uninhabited.” These words, used in the sense and connection they are, in the policy, must be construed to mean, that if the house insured should-cease to be used as a place of human habitation or for-
“I didn’t expect to, because I wasn’t able to maintain it.
“Didn’t you intend, at the time you stored those goods in that kitchen, to remove them to some other place?.
“Why, I expected to remove them, certainly I did; I expected to, but what time, I did not know. I had a place whete I could move them, was going to move them to the ice house belonging to the creamery.” His evidence further showed that he took a dining table to his son-in-law’s, and they ate off of it; that he also took a lounge there to sleep on, and that he had not had a fire in the house destroyed, for nearly a year before it was burned. When the house was occupied by Pierson it was heated by natural gas, and
Turning now to the special verdict, we find upon the question as to whether or not the house was vacant, etc., the following interrogatories and answers: “28. Was not Mr. Cox in possession of the premises insured, at the date the house was destroyed by fire? * * * Yes.
“29. Did Mr. Cox at any time surrender the possession of the house to Mr. Boyd or to any other person prior to the date of the fire? * No.
“30. Did not Mr. Cox have his household goods in the premises * * * continuously from the date of the issuance of the policy until the date of destruction by fire? Yes.
“32. Had Mr. Cox at any time removed his household goods from the premises * * * prior to the date of the fire? No.
“34. Did not Mr. Cox use the premises continuously from the time it was insured until the date of the fire? Yes.
“35. Had Mr. Cox at any time prior to the date of the alleged destruction of the premises insured, by fire, changed his residence from said premises to any other place? No.
“37. Was the house mentioued in the policy sued on vacant at the time of the * * * fire? No.
“38. Was the insured premises occupied at the date of the fire? Yes.
“39. Was the insured premises inhabited at the
“64. Did Benjamin H. Cox, with intent to vacate the building a few days before Henry J. Pierson and wife vacated the east side of the building insured, and occupied by them, remove his household goods and personal effects from the up-stairs rooms occupied by him, and also the down stairs rooms, and pack them in the kitchen of the west side of the building preparatory for their removal to another place already selected by said Cox.? No.
“65. Did Benjamin H. Cox occupy the building insured except for the purpose of storing his household goods in the west kitchen, after Henry J. Pier-son and wife vacated the east side of the building? Yes.
“66. If after Henry J. Pierson and wife had vacated the building insured, and after Benjamin H. Cox had packed and stored his household goods in the west kitchen room, what’ if anything remained in the rooms vacated * * * in the way of personal property, or that could be used and occupied for living purposes? Nothing.
“68. Was the personal property of said Cox in said west kitchen * * * in such condition that before the same could be used again for domestic and living purposes, it would have to be unpacked and replaced' in and about the rooms * * * for domestic and living purposes? They were not.”
The jury further found that when Cox so stored his goods in the kitchen, he intended to remove them, when appellee demanded possession of the premises; that he did not intend to remove them to some other
“83. After Benjamin H. Cox packed and stored his goods, did he ever afterwards use the building for ordinary living purposes? Yes.” It is further found that prior to Cox storing his goods in the kitchen lie removed his wearing apparel therefrom to Tague’s, his son-in-law, and he did not intend to take it back to said building. “88. Does the policy of insurance sued upon expressly provide that if the premises insured are or shall become vacant, unoccupied, or uninhabited without the written consent of the defendant endorsed thereon, the policy shall become null and void? Yes. 92. Where was Benjamin H. Cox at the time the building was destroyed by fire? Indianapolis.” The verdict found that the building was burned November 30, or December 1, 1894. These are all the facts stated in the verdict that are necessary to set out in this opinion. From these facts it clearly appears that the house covered by the policy of insurance sued upon, was within the meaning of
The facts that Cox had stored and locked in one of the rooms, most of his household goods; that he had á key opening into said room; that he went there once to black his boots, and then left for Indianapolis; that he went there occasionally to look after his goods; that he had not surrendered the possession of the property to appellee; that after so storing his goods he did not intend to return to the houseto eat or sleep, and thathe intended to remove them as soon as appellant demanded possession of the house, did not constitute him an occupant or inhabitant of the house within the meaning of the lav/, or the words, in that connection, used in the policy. The fact that the jury found that the house was not vacant and was inhabited and occupied, can add no force to the verdict, for such findings must be regarded as conclusions of law, and not findings of ultimate facts. There was no time as shown by the evidence or the verdict, that the house was used as a place of habitation, or for “ordinary living purposes,” after Pierson moved out of it, up to the time it was burned. No one ate or slept there, and it is evident that no one lived there. In view of the uncontradicted evidence in this case, we are unable to understand how the jury in answer to interrogatory eighty-three, above quoted, found that after Cox packed and stored his goods in the kitchen, he used the building “for ordinary living purposes.” The conception the jury had of the expression “ordinary living purposes,” as used by them, is beyond our interpretation or understanding. If for a person to go into a dwelling house, where all of his household effects are stored in one room, so that they may be conveniently removed
We think this case goes to extreme length, but we cite it to show, how stringent the rule is, and with what rigor it is enforced by the courts. In New York, a tenant occupying a dwelling house placed all her furniture in one of the rooms and went on a visit for six weeks, with the intention to occupy the house on her return. The furniture, etc., was placed in this one room in order that the other rooms might be papered and painted during her absence. She left a key with a friend, with directions to visit the house daily, to see that the doors were locked, the window shutters closed, etc. The furniture and household goods were insured, while contained in the building, “occupied and to be occupied as a dwelling house,” and the policy provided that it should be void if the building
A very instructive case is Moore v. Phoenix Ins. Co. 64 N. H. 140, 10 Am. St. 384, 6 Atl. 27, as to what is meant by the terms “vacant” and “unoccupied.” From the authorities and the etymological meaning of the words, we feel fully justified in saying that the words “vacant” and “unoccupied,” when used in a policy of insurance in connection with the idea that the insurer was stipulating against an increase in the risk from the absence of persons from the premises insured, must be regarded as interchangeable and equivalent in meaning; that when no one lives in the house it is both vacant and unoccupied, though it may contain articles of furniture which the last occupant failed to remove.
In Paine v. Agricultural Ins. Co., 5 (N. Y.) Thomp. & C. 619, it was said: “Occupation of a dwelling house is living in it.” The supreme court of Illinois said: “A fair and reasonable construction of the language, ‘vacant and unoccupied,’ is that it should be without an occupant — without any person living in it.” American Ins. Co. v. Padfield, 78 Ill. 169. In Massachusetts the supreme court, speaking of a dwelling
In Corrigan v. Connecticut Fire Ins. Co., 122 Mass. 298, it was held that a dwelling house was “vacant and unoccupied,” where the former occupant had moved with his family into another house, where they slept and took their meals, though they had left some of their furniture in the house, but had not surrendered the key. Herrman v. Adriatic Fire Ins. Co., supra, is a very instructive case.
There the insurance company issued to Herman a policy of insurance upon the buildings upon his farm and the furniture in his dwelling. These buildings consisted of a dwelling house used by the insured as a summer residence; buildings appurtenant thereto, — a frame wash and wood house, kitchen and privy, about forty feet in the rear of the dwelling, — a barn and sheds attached; a carriage house; another frame dwelling in which the person in charge of the farm lived. The different items of property were separately stated, with the amount of insurance on each. The policy contained a condition declaring it void in case the premises described should become and remain vacant and unoccupied for more than thirty days, without notice and consent of the company in writing. The insured was living in the dwelling house when the policy was issued; he left
In that case the out-buildings, wash and wood house, privy, etc., were burned. As to them the court 'said: “Now, these out-buildings were appurtenant to
An owner of a dwelling house in Iowa insured it, and at the time of the issuing of the policy, it was occupied by a tenant. He afterwards exchanged the property and requested the tenant to move into the house obtained by the exchange, which he did. He moved in the evening, leaving some articles of furniture, etc., in the house, and at midnight, the same night, the house was burned.- The policy provided that if the house should become vacant, or unoccupied, the policy should be void. Upon these facts b,eing established, it was held that the house was vacant and unoccupied, within the meaning of the policy, and that the insured could not recover. Snyder v. Fireman’s Fund Ins. Co., 78 Iowa 146, 42 N. W. 630. The Continental Ins. Co. v. Kyle, 124 Ind. 132, 19 Am. St. 77, is a case strongly in point. The opinion is an exhaustive one, and many authorities are collected and cited. In that case the policy was conditioned to be void if the house should become “vacant or unoccupied,” and was when the policy was issued, used as a dwelling by a tenant. The tenant moved out, and the parties tq whom the owner had previously rented it, made certain repairs on the premises, intending to move into the house on the 1st day of April. On March 30, the.prospective tenants put some hay into the loft of a stable on the premises and buried some
Many other authorities might be cited, but we do not see any necessity for extending this opinion for that purpose. The facts in the case before us, as shown by the evidence and special verdict,.present even a stronger case than any of those cited. Here Pierson had moved out a week before the fire, and before he moved Cox stored his goods in the west kitchen; went to Indianapolis, and returned, went to the house to black his boots; his wearing apparel had been removed long before; he ate and slept at another place; had no intention of returning to the house to live, and was ready at any time, upon notice to move his goods, and on the very night of the fire he went to Indianapolis and did not even leave any one to look after the property.
The policy provided that if the house “be or become vacant, unoccupied or uninhabited,” it should be 'soid. It certainly cannot be urged with any degree of reason that the building was, under the facts, inhabited'. The provision of the policy under consideration is plain and easily understood. As was said in Continental Ins. Co. v. Kyle, supra, “Policies of insurance, like all other contracts, are to be construed with reference to the intention of the parties, to be ascertained from the term's and conditions placed therein.” It is plain therefore that the appellant intended to provide against, the increased risk, by the property becoming “vacant, unoccupied, and uninhabited,” which it had a right to do, and in construing this condition we must look to the subject-matter of the contract. See Continental Ins. Co. v. Kyle, supra, and cases there cited.
Black, J., took no part in the decision of this case.